Civil Procedure exam questions from Michael S. Green's course at William and Mary, with occasional posts on other teaching and research

September 2016

Jackson Key pressed me on the following problem: Twiqbal pleading standards, the Court has now made clear, come from Fed. R. Civ. P. 8(a)(2) (in particular, the requirement of "showing that the pleader is entitled to relief"). But 8(a)(2) says nothing about dismissal for failure to satisfy these standards. Initially, the proper response is a motion for a more definite statement under 12(e). But what if, after the attempt at a more definite statement, the plaintiff still fails to satisfy Twiqbal? In Twombly, the Court spoke of dismissal for failure to state a claim under Fed. R. Civ. P 12(b)(6), but we now know that's wrong. Stating a claim and satisfying 8(a)(2) are different things.

Fed. R. Civ. P. 12(e) says the following:

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

In Sierocinski v. E. I. Du Pont de Nemours & Co., 103 F.2d 843 (3rd Cir. 1939), the trial court relied upon the ability to strike the allegation of negligence that (it thought) failed to satisfy 8(a)(2). After striking the allegation, the complaint failed to state a claim and could be dismissed under 12(b)(6). But courts don't rely on that two-step process anymore. So what is their method of dismissal? I could not find a court saying explicitly, but the same problem has arisen for a long time with respect to Fed. R. Civ. P. 9(b)'s requirement for heightened pleading concerning allegations of fraud. Here courts simply appeal to 12(e) as the ground for dismissal. E.g. Ianieri v. Monmouth Investments, Inc., 1989 WL 150013 (D.N.J. December 08, 1989). My guess is that they consider the dismissal to be an "appropriate order." The same should be true of Twiqbal.

Amber Leasure-Earnhardt asked in the review session why Mullane's requirement of notice reasonably calculated to apprise the defendant of the pendency of the action would not require translation of the summons (and complaint?) into the defendant's language when one knows the defendant does not speak English. (After all, the known mental incompetence of the defendant cannot be ignored in determining what is adequate notice under Mullane.) But courts have found otherwise.